Whether Revenue was justified in its decision to refuse access to details of the number of instances where individuals were afforded tax relief on pension contributions in particular circumstances on the ground that the records sought do not exist

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 October 2014 the applicant submitted a request to Revenue seeking details of the number of instances where tax relief was afforded to individuals for contributions to a pension scheme under two specified circumstances in respect of each tax year since the commencement of the FOI Act. In its decision letter of 7 November 2014, Revenue stated that it was not in a position to provide the information sought as it does not capture the data to the level of detail sought.

The applicant sought an internal review of Revenue's decision on 4 December 2014 and suggested that Revenue should be able to provide the data by identifying and counting the relevant cases. She suggested that the exercise could be confined to certain State agencies if the exercise would be too large. In its internal review decision of 29 December 2014, Revenue again stated that the information sought is not available as it is not captured in the Revenue system. It added that in order to identify relevant cases it would have to examine all taxpayer records to identify relevant cases. On this basis, Revenue also decided to refuse the request under section 15(1)(c) on the ground that granting the request would cause a substantial and unreasonable interference with, or disruption of, work of Revenue. The applicant submitted an application to this Office for a review of that decision on 24 April 2015.

In conducting this review I have had regard to correspondence between the applicant and Revenue, to correspondence between the applicant and this Office, to correspondence between Revenue and this Office and to the provisions of the FOI Act 1997, as amended.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The applicant's request was received by Revenue on 13 October 2014. As the request was received before the 2014 Act was enacted, it fell to be processed under the 1997 Act. In refusing the request, Revenue erroneously cited provisions of the 2014 Act. Revenue has acknowledged that this was an error and that the relevant corresponding provisions of the 1997 Act should have been cited. The relevant provisions of that Act are sections 10(1)(a) and 10(1)(c). Accordingly, this review is solely concerned with whether Revenue was justified in refusing access to records sought by the applicant under sections 10(1)(a) and 10(1)(c) of the FOI Act.

Analysis and Findings

Revenue's position is that it cannot provide the information sought by the applicant as it does not capture the data to the level of detail sought. Section 10(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. It is important to note that the FOI Act provides for a right of access to records. This means that if the information sought is not contained in a record held by the public body then it is not required to grant the request. Where a request is made in the form of a request for specific information, as opposed to a request for specific records, the FOI Act does not generally provide a mechanism for providing such information except to the extent that the request can be reasonably inferred to be a request for relevant records that exist as of the date of the request which contains the information sought.

The question arising in this case, therefore, is whether Revenue holds records that contain the information sought. Given the fact that Revenue provided details in its internal review decision of the steps it would be required to take and the records it would be required to examine in order to provide the information sought, it seems to me that Revenue cannot argue that it does not hold relevant records. Accordingly, I find that Revenue was not justified in refusing the request under section 10(1)(a) on the ground that the records sought do not exist or cannot be found.

Revenue also refused the request on the ground that granting the request would cause a substantial and unreasonable interference with, or disruption of, its work. Section 10(1)(c) provides for the refusal of a request where the body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body. It is important to note, however, that section 10(2) provides that a public body shall not refuse to grant a request pursuant to section 10(1)(c) unless it has assisted, or offered to assist, the requester to amend the request so that it no longer falls to be refused under that section.

I note that in her request for internal review, the applicant suggested that her request for information could be confined to the employees of certain State agencies. However, Revenue made no reference to this suggestion in its internal review decision. I further note that Mr Foley of this Office corresponded both with Revenue and the applicant during the course of the review on the matter of a refinement of the original request and that Revenue appears to remain of the view that the suggestion made at internal review stage would still require the allocation of significant resources to identify the relevant records. I also note that the applicant has suggested to this office that her request could be refined further. However, it is a matter for Revenue to consider any such refined request. Accordingly, I find that Revenue was not justified in refusing the request under section 10(1)(c) of the FOI Act given its failure to comply with the provisions of section 10(2).

The effect of my findings is that Revenue's decision to refuse the request must be annulled and it must make a fresh, first instance decision in respect of the applicant's original request, in accordance with the provisions of the 1997 Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended), I hereby annul the decision of the Revenue Commissioners to refuse the request under sections 10(1)(a) and 10(1)(c) of the Act, and I direct it to undertake a fresh decision making process in respect of the original request.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator